Citation NR: 9631905
Decision Date: 11/14/96 Archive Date: 11/22/96
DOCKET NO. 92-13 223 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUES
1. Entitlement to service connection for a skin condition.
2. Entitlement to an increased evaluation for service-
connected osteomyelitis of the left big toe, currently
assigned a 20 percent evaluation.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. Johnson, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1969 to November
1970.
This matter initially came to the Board of Veteransí Appeals
(Board) from a September 1991 decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in New York, New
York, which denied assignment of an increased evaluation for
service-connected osteomyelitis of the left big toe; and a
November 1991 decision denying service connection for a skin
condition and headaches.
The rating decision of September 1991 also denied increased
evaluations for the veteranís service-connected disabilities
involving his right eye, left big toe, scar condition, right
arm and forearm, right leg and foot, left leg, and nervous
condition. In his October 1991 notice of disagreement and
his February 1992 appeal, the veteran specifically expressed
his disagreement with the decisions involving headaches, a
skin rash, and left leg. In a separate decision of January
1993, the Board granted the veteranís claim of service
connection for retained metallic foreign bodies of the right
side of the face, which included his claim of service
connection for headaches. Therefore, the remaining issues of
service connection for a skin disorder and an increased
evaluation for left big toe osteomyelitis, are before the
Board at this time.
REMAND
Entitlement to Service Connection for a
Skin Condition
The record includes VA outpatient treatment reports dated
from 1980 to 1993. These records show treatment for a rash
on the veteranís face and chest. In these records, the
veteran reported that he had a recurring rash since his
return from Vietnam. The reports include diagnoses of
urticaria, seborrheic dermatitis, allergic dermatitis, and
chloracne.
The veteranís DD-214 indicates that he is a combat veteran
who served in Vietnam. In August 1996, the veteran testified
at his personal hearing, and raised the issue of service-
connection for residuals due to Agent Orange exposure. He
indicated that he received the claim forms. He testified
that he did not submit the forms because he believed that he
had to be 100 percent disabled to qualify for an Agent Orange
exposure claim.
As noted above, there have been various diagnoses given for
the veteranís current skin condition. One of the diagnoses
is chloracne, which is recognized as a disease associated
with Agent Orange exposure under 38 C.F.R. ß 3.309(e) (1995).
In view of the varied diagnoses, the findings of chloracne,
and the veteranís assertions regarding Agent Orange exposure,
the Board has determined that a dermatological examination is
in order.
The Board notes that there are questions regarding the
medical records which the RO considered. There is a March
1988 VA medical record which notes the veteranís report of a
rash on his groin area related to possible exposure to grout,
and a June 1985 pediatric report noting treatment for poison
ivy. When viewing these records in the context of the
veteranís assertions, they clearly are not related to the
veteranís claim of entitlement to service connection for a
skin rash. A review of the testimony and the veteranís
statements indicate that the veteran has specifically
referred to a rash on his face and chest, not to the separate
incident involving his exposure to grout in March 1988.
Also, the June 1985 pediatric report obviously is not part of
the veteranís medical records, since it indicates that
someone other than the veteran was treated for poison ivy.
Therefore, these reports should not be considered since they
are not relevant to his claim.
Entitlement to an Increased Evaluation
for Service-Connected Osteomyelitis of
the Left Big Toe
The Board notes that the last VA rating examination of record
related to the veteranís left big toe osteomyelitis was
conducted in November 1994. The veteran was afforded a
hearing in August 1996. At the hearing, the veteran provided
details regarding the pain, discomfort and other problems
stemming from his service-connected left toe osteomyelitis.
The veteran, after providing a waiver, presented August 1996
x-rays of his left foot to show the extent of his shrapnel
injuries. During that hearing, the veteran testified that he
had pain in his left toe, and that his left foot contained
multiple shrapnel fragments. The veteran presented copies of
x-rays taken in August 1996.
In view of this information, and since the last examination
was over several years ago, the Board has determined that the
veteran should be afforded an examination. Current
examination findings would be helpful. The Board would like
to request that the following actions be accomplished, as
such information would help the Board properly evaluate the
veteranís current disability picture.
First, the Board finds that records regarding the treatment
of the veteranís left big toe osteomyelitis should be secured
and associated with the veteranís claims folder prior to the
examination. As noted, it has been several years since the
last examination, therefore any recent records should be
secured and associated with the claims folder.
Second, the examinerís findings should be expressed in the
terms outlined in 38 C.F.R. ß 4.71a, Diagnostic Code 5000
(1995). Specifically, the examiner should offer an opinion
as to whether or not the veteranís service-connected
disability mirrors, or is comparable to the 30 percent
evaluation which requires a showing of definite involucrum or
sequestrum with or without discharging sinus.
Third, the August 1996 x-rays should be reviewed and
interpreted, and the findings noted in the examination
report. When the x-rays were presented at the hearing, they
were not accompanied by a report offering an interpretation
of what they represented.
In view of the foregoing, and in order to fully and fairly
evaluate the veteranís claim, the case is REMANDED to the RO
for the following development:
1. The RO should assure that the claims
folder includes copies of all VA
treatment records.
2. The veteran should be scheduled for a
special dermatological examination. The
examining dermatologist should be asked
to provide a diagnosis for any skin
disorder noted on examination. In
particular, the examiner should specify
whether the veteran has chloracne, or
another acneform disease consistent with
chloracne. The examiner should explain
the medical findings and principles which
support his or her conclusions, and offer
an opinion as to the nature and etiology
of each skin disorder that is present.
The claims folder should made available
to the examiner prior to the examination.
3. After securing all requested medical
records, the veteran should be afforded a
VA examination to determine the current
extent of the veteranís service-connected
left big toe osteomyelitis. The examiner
should express findings in the terms
outlined in 38 C.F.R. ß 4.71a, Diagnostic
Code 5000 (1995). Specifically, the
examiner should be asked to offer an
opinion as to whether there is involucrum
or sequestrum. In formulating the
medical opinion, the examiner should be
asked to interpret the August 1996 x-rays
associated with the veteranís claims
folder. The claims folder, including the
requested medical records and August 1996
x-rays, must be made available to the
examiner for review before the
examination.
4. The RO should readjudicate the
veteranís claims of service connection
for a skin condition and an increased
evaluation for service-connected left
big toe osteomyelitis. If the
determinations remain adverse to the
veteran, he should be provided a
supplemental statement of the case which
includes a summary of additional
evidence submitted, any additional
applicable laws and regulations,
including those for presumptive
disorders, and the reasons for the
decisions. The veteran should be
afforded the applicable time to respond.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The veteran need take no
action until he is further informed. The purpose of this
REMAND is to obtain additional information and to afford the
veteran due process of law. The Board intimates no opinion,
either factual or legal, as to the ultimate conclusion
warranted in this case.
G. H. SHUFELT
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, ß 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. ß 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. ß 20.1100(b)
(1995).
The appeal is denied.
- 2 -